At the invitation of the Healthcare Section of the Nebraska State Bar Association (NSBA), a team of Kutak Rock attorneys recently presented a 90-minute Continuing Legal Education (CLE) course on COVID-19-related healthcare fraud for the NSBA’s 2020 Virtual Annual Meeting. Anticipating likely healthcare investigations and enforcement actions that will follow the more than $2 trillion in federal COVID-19-related federal funding to healthcare providers and other businesses, the interdisciplinary panel provided their perspectives both from a compliance and litigation standpoint. Among other things, they addressed:

• Sources of federal COVID-19-related funding and related compliance obligations;
• Potential False Claims Act and other likely litigation risks to funding recipients; and
• How to prepare for and conduct internal investigations, including allegations that federal funds were misused.

Speakers at the virtual meeting included Kutak Rock attorneys Tom Kenny, Edward Fox, Torri Criger, David Bracht, and former Assistant U.S. Attorney Kimberly Hare, as well as Assistant United States Attorney Laurie Kelly of the United States Attorney’s Office for the District of Nebraska Office.

The federal False Claims Act (FCA), including relevant recent case law, and the CARES Act (and related federal funding provisions) were dissected and put into context for Nebraska and national healthcare providers given the unique circumstances posed by the COVID-19 pandemic. The presentation also outlined proactive steps healthcare providers should take to avoid or mitigate potential FCA liability.

As noted in the presentation, the amount of COVID-19-related funds distributed by the federal government greatly exceeds the recovery funds provided during the financial crisis of 2009, and the prosecutions for misuse or abuse of those funds likely will result in a tsunami of enforcement activity. Ultimately, COVID-19-related funding is a double-edged sword—use the funds wisely and read the fine print.

A recording of the webinar is available to all NSBA members through July 7, 2022 and Nebraska CLE credit is available. For non-members, or those who wish for a more personalized presentation adapted to their particular circumstances, please contact one of the attorneys mentioned above and below to discuss.